Russell v. Bessen

In a medical malpractice action to recover damages for personal injuries, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Ferraro, J.), entered May 17, 1985, as denied those branches of his motion which were to strike the *717action from the Trial Calendar and to direct the plaintiff to submit to a physical examination.

Ordered that the order is affirmed insofar as appealed from, with costs.

Because the defendant failed to move to strike the note of issue filed by the plaintiff within 20 days after its service, as was then required by 22 NYCRR former 675.3, and, in fact, waited 17 months before submitting the motion to strike without offering a reasonable excuse for this excessive delay, the defendant is deemed to have waived his right to thereafter conduct a physical examination of the plaintiff (see, Bowen v Fiore, 42 AD2d 960; Sloan v Briggs Leasing Corp., 97 AD2d 818). Furthermore, the defendant failed to demonstrate the existence of any special or unusual circumstances, or that unanticipated conditions developed subsequent to the filing of the note of issue, which would warrant a contrary result (see, Levine v McFarland, 98 AD2d 795). Bracken, J. P., Lawrence, Fiber and Spatt, JJ., concur.